Petroff

MEMORANDUM *

William T. Petroff appeals his conviction and sentence for willful failure to pay child support. We affirm the conviction but vacate the sentence.

Petroff argues that Congress lacked power to enact the statute under which he was convicted, 18 U.S.C. § 228 (a)(3). He raises this claim solely to preserve the argument on appeal; as he acknowledges, the claim is foreclosed by United States v. Mussari, 95 F.3d 787 (9th Cir.1996). We therefore affirm the conviction.

Petroff claims that his sentence is unconstitutional under United States v. Booker, — U.S. —, 125 S.Ct. 738 , 160 L.Ed.2d 621 (2005), and that the district court misapplied two provisions of the United States Sentencing Guidelines. Because we conclude that the district court misapplied U.S.S.G. § 2B1.1(b)(8)(A), we vacate Petroffs sentence and decline to reach the remaining issues.

The relevant Guideline provision requires a two-level enhancement if “the defendant relocated, or participated in relocating, a fraudulent scheme to another jurisdiction to evade law enforcement or regulatory officials.” U.S. Sentencing Guidelines Manual § 2Bl.l(b)(8)(A) (2003). The district court found that this provision applied…